Deivanai Achi And Anr. vs R.M. Al. Ct. Chidambaram Chettiar ...

on 26
CCAugust, 1953
Showing the contexts in which ceremonies for a hindu marriage.

11. Marriage is a Samskara for the man as well as the woman of the Sudra
caste also. Marriage in Hindu law is not a mere contract. It is the rite
of marriage which creates the indissoluble religious tie between the
husband and wife. It is necessary to examine whether to constitute a
valid marriage under Hindu law, ceremonies are essential and, if so,
whether it is obligatory for the Sudras to observe such ceremonies. It was
maintained at one stage of the arguments by learned counsel for the plaintiffs
that even in the case of regenerate classes, i. e., 'dwijas' (Brahmana,
Kshatriya and Vaisya), the observance of ceremonies is not essential to
bring about a valid union between a man and a woman and that
the ceremonies were utmost only of evidentiary value.

"A girl who does not accept the man who carried her away by force, as her
husband, may marry again and it is immaterial in those marriages whether
she is purified by samskara or otherwise".

Narada as quoted in Madanaparijata:

"The mantras for marriages are considered to be essential to make a girl a

wife and the seventh step taken along with that girl is the culmination of that
ceremony."

The same is said in Apararka and Smritichandriita also.

22. Apart from the views of the commentators above referred to, Priyanath
Sen who was an erudite scholar and met with an untimely death and whose
talent was appreciated and expressed by Sir Asutosh Mukherjea in the
Introduction to the "General Principles of Hindu Jurisprudence" (Tagore
Law Lectures 1909) refutes in the first instance the view expressed by
Mayne in Hindu Law and Usage (earlier edition) that some of the forms
of marriage under Hindu law are only euphemisms for seduction and rape.
After pointing out that Mayne's assumptions were entirely unfounded and
were not warranted by anything in Hindu law, he points out that Mayne's
views proceeded on a total misconception of the fundamentals of
the Hindu law of marriage. He concludes that religious ceremonies are
essential in whatever form the marriage may be, after quoting the' opinion
of Madhavaeharya and the text of Devala. To the question raised
"Why Hindu law givers should have sanctioned the marriage of a girl
obtained by use of force or fraud", the answer given by the learned Lecturer
at p. 270 is:

In paragraph 105-A at p. 144 (Mayne 11th Edn.) the learned author refers to
the decision of a single Judge of this court in 'Mandan Shetti v. Timmiavva',
AIR 1940 Med 135 (P) where this view was adopted. To obviate any doubt
that may be entertained regarding the applicability of the texts relating
to Hindu marriages to the remarriage of widows Section 6 of
the Hindu Widows Remarriage Act (15 of 1856) lays down that "Whatever
words spoken, ceremonies performed or engagements made on
the marriage of ft Hindu female who has not been previously married, are
sufficient to constitute a valid marriage, shall have the same effect if
spoken, performed or made on the marriage of a Hindu widow; and
no marriage shall be declared invalid on the ground that such
words, ceremonies or engagements are Inapplicable to the case of a
widow."

This section is undoubtedly permissive in that it recognises the validity of

applying the ceremonies and engagements applicable to unmarried woman
tinder Hindu law also to the remarriage of widows What is more, words,
that is mantras, may also be repeated and it is not open to anybody to
question the appropriateness of the applicability of the forms and procedure
and the mantras in the case of remarriage of widows. The fact that a
particular rite of marriage was not prescribed by the statute is of no
consequence. If the parties are governed by Hindu law, as the parties in this
case are, in order to bring about a valid marriage even In the case of a
widow, they must either observe the formalities and
the ceremonies requisite for a valid marriage under Hindu law or at any
rate such a form and such ceremonies which according to the usage of the
community, caste, sub-caste or family govern their marriages in order to
taring about and establish a valid marriage. If they do not choose however
to conform to any of the forms recognised or permitted by Hindu law, it is
open to them to have recourse to the statute, for example, Act 3 of 1872 and
get the marriage registered.
Perumal Nadar (Dead) By L.R.S vs Ponnuswami on 17 March, 1970
Showing the contexts in which ceremonies for a hindu marriage. appears in
the document

The marriage ceremony was performed according to Hindu rites and

customs : a bridal platform was constructed and Perumal tied the sacred than
which it is customary for a Hindu husband to tie in acknowledgement of
the marriage. The High Court on a consideration of the evidence recorded
the following finding:

"Oral evidence was adduced to prove that the marriage was celebrated
according to Hindu rites and Sams-
karas. Invitations were issued at the time of the marriage and usual
customary tying of thali was observed. After the marriage she ceased to
attend the Church, abandoned the Christian faith and followed
the Hindu customs and manner prevailing among the Hindu Nadar
community of Travancore."

Perumal who had previously been married to one Seethalakshmi agreed to

and did go through the marriage ceremony. It is in evidence
that marriage between Hindu males belonging to the Nadar community
and Christian females are common and the wife after the marriage is
accepted as a member of the Hindu Nadar community.

Mr. Gupte on behalf of Perumal contends that a valid marri- age mistake
place between two Hindus only and not between a Hindu and a non-
Hindu and in the absence of any evidence to show that Annapazham was
converted to Hinduism before she married Perumal, the marriage, even if
performed according to the Hindu rites and ceremonies, is not valid in law.
Counsel also contended that the evidence that Annapazham lived after
the marriage is a Hindu will not validate the marriage.

The evidence clearly establishes that the parents of Anna- pazham arranged
the marriage. The marriage was performed according to Hindu rites
and ceremonies in the presence of relatives who were invited to attend :
customary ceremonies peculiar to a marriage between Hindus were
performed : no objection was raised to the marriage and after
the marriage Annapazham was accepted by the local Hindu Nadar
community as belonging to the Hindu faith, and the plaintiff was also
treated as a Hindu. On the evidence there can be no doubt that Annapazham
bona fide intended to contract marriage with Perumal. Absence of specific
expiatory or purificatory ceremonies will not, in our judgment, be sufficient
to hold that she was not converted to Hinduism before
the marriage ceremony was performed. The fact that Perumal chose to go
through the marriage ceremony according to Hindu rites with
Annapazham in the presence of a large number of persons clearly indicates
that be accepted that Annapazham was converted to Hinduism before
the marriage ceremony was performed.
Priya Bala Ghosh vs Suresh Chandra Ghosh on 4 March, 1971
Showing the contexts in which ceremonies for a hindu marriage. appears in
the document

According to Mr. Majunidar, when once the priest has given evidence to the
effect that the marriage between the respondent and Sandhya Rani has been
performed, it follows that all the essential ceremonies that are necessary to
constitute a valid marriage must be presumed to have been performed. In
any event, when there is evidence to show that the marriage as a fact has
taken place, the presumption is that it has taken place according to law. In
this connection Mr. Majumdar referred us to various English decisions when
on the basis of certain evidence regarding the taking place
of marriage between the, parties a presumption has been drawn that
the marriage must have been solemnized according to law. In our opinion,
it is unnecessary to refer to those cases cited by the learned counsel as the
position is concluded against the appellant by the decisions of this Court on
both points. Section 5 of the Act lays down conditions for
a Hindu marriage' It will be seen that one of the conditions is that referred
to in clause (i), namely, that neither of the parties 96 5 has a spouse living at
the time of the marriage., Section 7 dealing with
the ceremonies for Hindu marriage is as follows :

"Section 7-Ceremonies for a Hindu marriage. (1)

A Hindu marriage may be solemnized in accordance with the customary
rites and ceremonies of either party thereto. (2) Where such rites
and ceremonies include the Saptapadi that is, the taking of seven steps by
the bridegroom and the bride jointly before the as red fire),
the marriage becomes a complete and binding when the seventh step is
taken."

We have ponited out that in the case before us both sides were agreed that
according to the law prevalent amongst them Homo and saptapadi were
essential rites to be performed for solemnities of the marriage and there is
no specific evidence regarding the performance of these essential rites. The
parties have also not proved that they are governed by any custom under
which these essential ceremonies need not be performed.
(1) [1965] 2 S.C.R. 837.

96 7 From the above quotations it is clear that if the alleged

second marriage is not a valid one according to law applicable to the
parties, it will not be void by reason of its taking place during the life of the
husband or the wife of the person marrying so as to attract s. 494 I.P.C.
Again in order to hold that the second marriage has been solemnized so as
to attract s. 17 of the Act, it is essential that the second marriage should
have been celebrated with proper ceremonies and-in due form. In the said
decision this Court further considered the question whether it has been
established that with respect to the alleged second marriage the
essential ceremonies for valid marriage have been performed. After
referring to the passage in Mulla's Hindu Law, 12th Edn. at page 615
dealing with the essential ceremonies which have to be performed for a
valid marriage, this Court, on the evidence held that the prosecution had
neither established that the essential ceremonies had been performed nor
that the performance of the essential cermon is had been abrogated by the
custom goveming the community to which the parties belonged In this view
it was held that the prosecution in that case had failed to establish that the
alleged second marriage had been performed in accordance with the
requirement of s. 7 of the Act. The effect of the decision, in our opinion, is
that the prosecution has to prove tbat the alleged second marriage had been
duly performed in accordance with the essential religious rites aplicable to
the form of marriage gone through by the parties and that the
said marriage must be a valid one according to law applicable to the
parties. In Kanwwl Ram and others v. The Himachal Pradesh Admn. (1) ibis
Court reiterated the principles, laid down is the earlier decision referred to
above that in aprosecution for bigamy the second marriage has to be proved
as a fact and it must also be Proved that the necessary ceremonies had been
performed. Another Proposition laid down by this decision, which answers
the second contention of the learned counsel for the appellant, is that
admission of marriage by an accused is no evidence of marriage for the
purrpose of proving, an offence of bieamv or adulterv. On the evidence it
was held in the said decision that the witnesses have not Proved that the
essential ceremonies had been performed. It was contended that an
admission made by the accused regarding the second mamaee. is conclusive
of the fact of a second marriage having taken place and that without any
other evidence a conviction could be based on such admission. This Court
rejected the said contention stating "..................it is clear that in law such
admission is not evidence of the fact of the second marriage having taken
place. In a bigamy case, the second marriage as a fact, that is to say,
the ceremonies constituting it must be proved : Empress v. Pitambur
Singh(1), Empress v. Kallu ( 2) , Archbold Criminal Pleading Evidence and
Practice (35th ed.) Art. 3796. In Kallu's case and in Morries v. Miller(3) it
has been held that admission of marriage by the accused is not evidence of
it for the purpose of proving marriage in an adultery or bigamy case........
The decision in R. V. Robinson(4) was relied on in the above decision on
behalf of the prosecution in support of the proposition that it was not
necessary to prove that all the ceremonies required for the particular form
of marriage had been observed. After a consideration of the facts in the
English decision, quoted above, this Court has expressed the view that the
said decision does not support the said proposition enunciated on behalf of
the prosecution. We are only adverting to this fact, because the English
decision was again referred lo us by Mr. Majumdar; and it is not necessary
for us to refer to the same over again excepting to say that the said decision
does not advance the case of the appellant.
Padullaparthi Mutyala Paradeshi vs Padullaparthi Subbalakshmi And ... on 3
August, 1961
Equivalent citations: 1962 CriLJ 308
Author: Munikanniah
Bench: B Reddy, Munikanniah

JUDGMENT Munikanniah, J.

1. A question of importance concerning the interpretation of Section 17 of the Hindu Marriage

Act (Central Act XXV of 1955) read with Section 494 IPC is involved in this reference which
has been made by my learned brother, Basi Reddy, J.

2. This revision petition is filed by the petitioner (1st accused) against Criminal Appeal No.
338 of 1959 on the file of the Sessions Judge, Rajahmundry who dismissed it. That appeal
arose out of C.C. No. 66 of 1959 on the file of the Additional District Munsif-Magistrate,
Ramachandrapuram. As against the 1st accused a private complaint was laid Under Section
494 IPC read with Section 17 of the Hindu Marriage Act, 1955 Central Act XXV of 1955)
alleging that this accused, a retired elementray School teacher, contracted a marriage with the
2nd accused, who is the daugther of accused 3 and 4, even though he had at the date the
marriage with the 2nd accused the complainant as his wife. The 2nd accuse is the second wife
of 1st accused; and accused 3 and 4 who are the father and mother of the 2nd accused, stood
charged Under Section 494 read with Sections 109 and 114 IPC The learned Additional
District Munsif-Magistrate found that the second marriage of the 1st accused with the 2nd
accused was solemnized at 2-00 a.m. on 1-9-1959 in Seethanagaram In Rajahmundry taluk,
and believing the evidence of the 3rd accused who deposed as D.W, 2 that A-2 and A-4 had
no knowledge of the marriage, acquitted them. The 1st accused was charged and convicted
Under Section 494 IPC and sentenced to undergo rigorous imprisonment for three months and
to pay a fine of Rs. 900/-; the 3rd accused was also found guilty Under Section 494 IPC read
with Section 114 IPC and sentenced to undergo three months rigorous imprisonment. On
appeal by accused 1 and 3, the learned Sessions Judge held the view that the 3rd accused gave
his daughter in. marriage under a mistaken impression that the previous marriage of the 1st
accused with the complainant has been annulled and that therefore, the 3rd accused did not
intentionally aid the commission of the offence. He, therefore, allowed Criminal Appeal No.
332 of 1959 filed by the 3rd accused, but confirmed the conviction and sentence imposed on
the 1st accused as he dismissed Criminal Appeal No. 338 of 1959.

3. A few more facts may be briefly stated: The complainant, Suhbalakshmi, married Mu tyala
Paradesi (A-1) in 1947. She had three daughters by the 1st accused but only one or them is
alive. They lived in Undrajavaram of Tanuku Taluk in West Godavri District. In or about 1955
and 1956, there were differences between the complainant and her husband. Thereafter the 1st
accused arranged with Bulusu Suryanarayana (A-3) to marry his daughter Saraswati (A-2),
The 1st accused at about 3-00 P. m., on 31-8-1958 arrived at Seethanagram where Saraswathi
and Suryanarayana lived, for having the marriage celebrated. Just about that time,
Suryanarayana (A-3), father of Saraswathi, came to know that the 1st accused was having a
wife alive, and therefore he and P. Ws. 2 and 3 questioned the 1st accused about it. It is in
evidence that the 1st accused told them that (he complainant left his protection and that her
marriage with him was annulled. Regarding this, the" 3rd accused examined as D.W. 2 has
further stated that "he (A-1) would not; have agreed to the present marriage if he had not the
prior marital the cancelled in view of the prevailing Hindu Law."

Bulusu Suryanarayanamurti also deposed {hat the marriage of the 1st accused with his
daughter, Saraswathi, was celebrated at Seethanagaram and that the 1st accused is his son-in-
law and the husband of the 2nd accused. Subbalakshmi, the complainant, deposed as P. W, 1
that she cams to know of this marriage only two months prior to the filing of this complaint
and she sent a registered notice (Exhibit A-2) later. P.W. 2 deposed that he was orally invited
to the marriage of A-l with A-2 on 1-9-1958 and that he attended the marriage celebration
which took place at 2-00 A. M. at Bulusu Suryanarayarnurthi's house. It was elicited from him
in further cross-examination that no person from a different village came to attend that
marriage and that the purohit that officiated at the marriage was alive and available in
Seethanagaram. He stated that there were pipers and no presents were given by A-l to A-2 or
by A-3 to the bridal couple.

P.W. 3 is a rich man who spent money for the marriage as he wanted t0 help
Surynarayanamurthi who is a poor man. P.W. 3 also attended the marriage function. He was
also present when the terms of the marriage were settled. He spoke of the presence of P.W. 2
at the marriage. According to him, the petitioner and another by name B. Ramamurthi
Avadhani of Rajahmundry also came On 31-8-1958. He spoke to the performance of the
marriage of 1st' accused and Saraswathi at the 3rd accused's house. The 1st accused denied the
offence and stated that he did not know any of the prosecution witnesses who, according to
him, depose falsely having been bribed. The 3rd accused who was permitted to represent A-2
and A-4 stated that the marriage of A-l with Saraswthi was true but brought by
misrepresentations of the 1st accused.

4. Both the lower courts relied upon the evidence of these witnesses and also that of A-3 who
deposed as D. W, 2 and held that the prosecution established that the bigamous marriage was
solemnized. Before the learned Sessions Judge, a. point that the ingredients necessary to
establish a Hindu marriage have not been proved, was taken on behalf of the 1st accused. It
was put on the ground that as the parties are Brahmins, it was incumbent upon the prosecution
to prove that the ceremonies at the marriage including that of Saptapadi have in fact taken
place. The learned Sessions Judge has pointed out that, beyond suggesting that P.Ws. 2 and 3
were bribed by A-3, do other questions were put in cross-examination. Keeping .therefore in
mind (Jaat there was no cross-examination directed as to the want of proper and necessary
ceremonies and remarking that not even a whisper was made that the form of marriage went
through by the appellant (A-1) and the 2nd accused was not; known to or recognised by law
and also observing that the validity of the latest marriage of the latest accuse cannot be
questioned negatived the contention of the 1st accused that his marriage with A-2 U not
bigamous.
5. In this revision petition the same point is again agitated and elaborately argued by Mr.
ParthasarathySwamy the learned Counsel for the petitioner. He contends firstly 'that the
prosecution, when it charges a person with the offence of bigamy punishable Under Section
494 IPC should prove positively, apart from the marriage which is subsisting, that the accused
contracted another valid marriage in accordance with the rites obtaining in the particular caste
or sect of the Hindus; and secondly if there is no proof by the prosecution of such a valid
second marriage, there is no offence of bigamy. In other words, having regard to the facts of
the instant case, what is contended by the learned Counsel is, that short of the evidence of the
taking of the seventh step as a result of the performance of ceremony of Saptapadi which must
be made available by evidence of the direct witnesses there is no other way of proving the
solemnization of a marriage in such a case.

The learned Counsel pointed out that just as the first marriage, the second offending marriage
should be established as haying taken place by due performance of ceremonies including
Saptapadi; and maintained that any inferential conclusion otherwise leading to the
establishment thereof is, at any rate, outside the purview of the scheme of the Hindu Marriage
Act. He submitted that the importance of including Section 7 in the Hindu Marriage Act has
to be recognized, in that special significance is to be attached to the stress laid on he mention
made about the marriage becoming complete and binding only when, the seventh step is taken
in the ceremony of Saptapadi.

It would thus be seen that in substance, the learned Counsel has been urging that whatever
position was before the enactment of Central Act XXV of 1955, no complainant can succeed
thereafter in getting the accused punished for an offence of bigamy without leading evidence
as to the taking of the seventh step when the parties to the second marriage are Brahmins.

6. For the determination of the points so raised, a preliminary examination of how the penal
provisions contained in Section 494 of the Indian Penal Code came to be applied to the case
of Hindus cannot be considered unimportant. Before 1946, the marriages between Hindus
were; not made monogamous by statute unless such marriages were contracted between
Hindus under the Special Marriage Act (III of 1872). A few statutes such as the Madras
Marumakkattayam Act IXXII of 1933) probihited polygamy and the Madras Nambudri Act,
which governed the Nambudris in the province of Madras', allowed the taking of a second wife
by a Nambudri only in some contingencies. The second marriage by a woman was not also
unknown which depended upon desertion or putting away of the wife by her husband. In the
State of Bombay, the Bombay Prevention of Hindu Bigamous Marriages Act, 1946 (XXV of
1946) made the contract of bigamous marriage void and penal.

The Saurashtra Prevention of Hindu Bigamous Marriages Act, 1950 had a similar effect in that
State. A similar legislation in Madhya Pradesh made marriages between Hindus in that State
monogamous. In the State of Madras as it existed then, the Madras Hindu (Bigamy Prevention
and Divorce) Act (VI of 1949) rendered any marriage solemnized after the commencement ot
the Act between a man and woman either of whom has a1 spouse living at the time of such
solemnization void, notwithstanding any rule of law, custom or usage of the contrary, while
preserving the right of a man or woman whose marriage has been dissolved by a final order of
a Court Under Section 5 of that Act, or under any other law for the time being tri force, or in
accordance with any custom or usage permitting of divorce after six months from the date of
such final order, or from the date on which the marriage was dissolved in accordance with the
custom or usage. Provision was also made in Sub-section (2) of Section 4 of that Act for
punishing Under Section 494 or 495, IPC a party to such a void marriage as It is bigamous.

While so, Hindu Marriage Act (Central Act XXV of 1955) was enacted which repealed all
these local statutes and replaced them. A provision has thereby been made giving the statutory
recognition to the rule of monogamy. Section 5 so far as material for the present purpose is as
follows:

5. A marriage may be solemnized between any two Hindus, if the following conditions are
fulfilled, namely:

(i) neither party has a spouse living at the time of marriage;

XX XX XX

Section 11 is in the following terms;

Any marriage solemnized after the commencement of this Act shall
be null and void and may, on petition presented by either party
thereto, be so declared by a decree of nullity if it contravenes
any one of the conditions specified in Clause (1) XX XX XX of
Section 5.

Section 17 treats the bigamous marriage as void and prescribes the

punishment for it. It reads;
Any marriage between two Hindus solemnized after the commencement
of this Act is void if at the date of such marriage either party
had a husband or wife living; and the provisions of Sees. 494 and
495 of the Indian Penal Code (Act XLV of 1860) shall apply
accordingly.

Thus, it could be seen that this Central Act has, while replacing the local statutes relating to
the prevention of bigamous marriages, sought to achieve the object underlying those statutes,
by the provisions made in the above mentioned sections. This also brought the law relating to
marriage between Hindus to stand on a par with that under the Special Marriage Act, 1954
which replaced the earlier Act III of 1872.

7. It is also clear from the above that the question posed in so far as it pertain to the proof of
marriage should have come before Courts. Cases which involve proof of first or second
marriage of a person with a view to find out whether the second marriage is bigamous and
punishable under Sees. 494 and 495 IPC are legion Till 1946 these cases undoubtedly would
no have arisen in matters pertaining to marriages of Hindus without reference to the Special
Marriage Act but only among persons other than Hindus or where a Hindu contracted the
marriage under the Special Marriage Act then in force. Nevertheless, these decisions would,
in our view, be of guidance to find out the nature and quantum of proof required to establish
the solemnization of a marriage be it the first or the second when especially the approach to
the question was with a view to find out whether the second marriage was bigamous.

Decided authorities under Hindu Law to which what tantamounts. to proof of solemnization
of a marriage is discussed cannot also be lacking, and they too are likely it0 be helpful. A
review as far as possible, of some of them 'will be useful to find out the state of law regarding
the onus of proof, the presumptions which arise and the special rules of evidence, if any, made
marriage solemnized after the commencement applicable to such cases till at least the Hindu
Marriage Act of JL955 came into force. We consider that embarking upon such an enquiry is
essential in view of the argument of the learned Counsel that the provision contained in Section
7 Of the Hindu Marriage Act, 1955 created a special rule of evidence in supersession of any
presumptions which may arise in respect of the validity of a marriage even when in fact it has
been found to have been truly performed. Section 7 which the learned Counsel relies on in this
context, reads:

7 (1) A Hindu marriage may be solemnized in accordance with their customary rites and
ceremonies of either party thereto. (2) Where such rites and .ceremonies include the Saptapadi
(that is, the taking of seven steps by the bridegroom and bride jointly before the sacred fire),
the marriage becomes complete and binding when the seventh step is taken, The learned
Counsel seeks to interpret this Section as stating that a marriage which has not been proved to
be complete as proof of the seventh step; taken in accordance with the ceremony of Saptapadi
is wanting (when such a ceremony has to be gone through), that marriage, should be considered
as mot binding on the parties and as therefore void. As a corollary he would urge that when
this infirmity apaches to a second marriage of a person or at least when the complainant does
not prove that the second marriage is complete in this way, the person accused of bigamy
cannot be held to be guilty as there is no valid second marriage. We will advert to this second
point later. Before then, we will proceed to consider the state of decided authorities so far are
made available to this Court.

8. At the outset, it Is necessary to remember that in proving the existence of any relationship
by marriage, the statements of a person who had special means of knowledge and when such
a statement was made before the question in dispute was raised, is made admissible under Sub-
section (5) of Section 32 of the Indian Evidence Act and that Section 50 has rendered an
opinion as to relationship of one person to another expressed by the conduct of any person
who, as a member of the family or otherwise, has special means of knowledge on the subject
as relevant when the Court has to form that opinion.

But the proviso Section 50 makes such opinion insufficient to prove a marriage in proceedings
under the Indian Divorce Act (IV of 1889) or in prosecutions Under Sections 494, 495, 497 or
498 of fee Indian Penal Code. This would mean that the proof of fact- at marriage is not to
depend on opinion or conduct evidence. The offences adverted to in that proviso are those
relating to marriage and are contained in Chapter XX of the Indian Penal Code, Therefore,
time and again, the sufficiency of proof of a marriage where the offence is bigamy, adultery
or enticing or abducting and detaining with criminal intent a married woman have come to be
considered in decided cases. In all these offences, since marriage as an ingredient has to be
proved for one purpose or the other, what should be considered in law as proof of marriage has
been frequently formulated in pronouncements by Courts.

9. It is convenient to first take up the decision in Empress v. Pitambur Singh ILR 5 ,Cal 566
(FJB). There the Full Bench was concerned in resolving the dispute as to what is meant by
strict proof of the marriage which is required in a case where the accused is charged with an
offence of adultery and when can it be said that there is or not sufficient proof of the marriage.
The Calcutta High Court was considering the case where the only evidence of the marriage of
the .woman was the statement of the prosecutor and that of the woman who admitted the
marriage. The Full Bench appears to approve the opinion in the referring judgment that Section
50 of the Evidence Act excludes the sufficiency of less strict proof of marriage as may be
available by the application of Section 32 or the provisions of Section 50 of the Evidence Act.
It required the specification of time and place, and followed the English law in demanding
strict proof. The Full Bench does not seem to disagree with the following expressed in the
referring order. The excerpt reads:

It appears to us that the framers of the Evidence Act have endeavoured, in dealing with this
subject, exactly to follow the English law. And in England there has never been any doubt that,
in an indictment for bigamy, the first marriage, or in proceedings founded upon adultery, the
marriage must be proved with the same strictness as any other material fact Garth, C.J.
delivering the opinion of the Full Bench said;

The marriage of the woman, as observed by the learned Judges who referred the case, is as
essential an element of the crime charged as the fact of illicit intercourse, and the provisions
of the Evidence Act (Section 50) seem to point out very plainly, that where the marriage is an
ingredient in, the offence, as in bigamy, adultery, and the enticing of married woman, the fact
of the marriage must be strictly proved in the regular way.

In the result, according to this decision of the Full Bench, the available evidence of the
marriage in that case was held not sufficient to justify a conviction for adultery. We would like
even before the commencement of discussion of other cases, to draw, pointed attention to the
importance the Full Bench attached to the proof of the fact of marriage "as any other material
fact" and "in the regular way", and that the decision is an authority that the fact of marriage
cannot be held to be proved merely on the admissions contained in the statements of the
husband and wife. The danger of convicting a person accused of an offence Under Section 497
J, P. G. on mere assertions of the spouse has been clearly brought out in Empress of India v.
Kallu ILR 5 All 233. Straight, J. observed the judge (Sessions Judge) who tried the case should
have required some satisfactory proof independent of the very vague assertions of Durbi and
Parbatta, to show that the ceremony of marriage, as recognised among Kachis, had taken place
between them ....

The learned Judge followed the ruling of the Full 'Bench in ILR 5 Cal 566 (F3) and remanded
the case for, further enquiry as he felt that proof adduced regarding the marriage was not
sufficient.

10. The next important land-mark is created by the decision in Queen Empress v. Subbarayan
ILR 9' Mad 9. A Division Bench consisting of Muttuswajnj Ayyar and Hutchins JJ. were
concerned with the acquittal by the appellate court of an accused .who was convicted of an
offence Punishable Under Section 498 IPC i.e., enticing away a married woman. The appellate
court which acquitted the accused relied upon the decision in ILR 5 Cal 56 (FB). Their
Lordships of the Madras High Court however interpreted the Full Bench decision of the
Calcutta High Court to mean that the fact of marriage must be proved in the ordinary way i.e.,
by other more reliable evidence than that of the mere "opinion expressed by conduct of a
person who, as a member of the family Or otherwise, has special means of knowledge."

They were definitely of the opinion that neither the Full Bench decision of the Calcutta High
Court nor that in ILR 5 All 233 meant t0 lay down that a husband or wife is precluded from,
proving his or her marriage. Hutchins J. who spoke for the Bench, went to the extent of
remarking that if such was the purpose of those two decisions the Division Bench of the Madras
High Court was prepared to dissent. Substantiating the stand taken by them, the learned Judges
of the Madras High Court drew support from the practice obtaining in English Courts and
pointed out that the celebration of a marriage in England could be proved by any person who
was actually present and saw the ceremony performed, and the onus is on the defendant for
impugning its validity.

Though they could be said to approve such a general proposition, the decision in that case
actually turned upon taking stock of nature or proof available on record. Observing that what
was before them was a marriage Between the parties belonging to Marava community, that the
wife deposed that four years elapsed since the marriage was performed, that she. cohabited
after attaining puberty and that there was a similar admission by the husband and there was
the. further fact also that the mother of the woman who was examined as witness No. 4 swore
that he had her daughter married to the prosecutor coupled with another feature that 'none of
these witnesses were cross-examined as to the facrum or validity of the marriage, and the
accused persons in no way impugned its validity, they felt that they could not entertain any
doubt that the marriage has been sufficiently established.

At the same time they relied upon the decision in R. v. Inhabitants of BramPton (1808) 10 East
282 which clearly laid down that the Onus is thrown on the defendant for impugning the
validity of the marriage. They referred also to the passage which occur in Archbold Criminal
Pleadings, Evidence and Practice (185.9 edition) in Section 1 of Chapter 18 dealing with
bigamy and which brings out that "there must be evidence of celebration; as evidence of
acknowledgment, on of cohabitation or repute will not suffice."

11. Later decisions of the High Courts in India, it may be pointed out, contented them' selves
in finding out what proof made out marriage or negatived it in the circumstances of each case
and decided the same as falling under the dicta of either JLR 5 Cal 56.6 or ILR 9 Mad 9. To
illustrate: The Allahabad High Court in Queen Empress v. Dal Singh ILR 20 All 166
considered that where the accused was prosecuted Under Section 498 IPC the evidence of
marriage which consisted in the statements of the woman and of the complainant would not be
adequate; and the following observations were made by the Division Bench consisting of Edge
C. J, and Burkitt J.

In cases of this kind where a false charge may easily be made of enticing away a woman, said
to be a married woman, but possibly only a mistress, the court should require some better
evidence of the marriage than the mere statement of the complainant and the woman.

The strong proof of marriage hat is specially required where the woman, and man may join
together to harass the accused is thus particularly stressed, In Emperor v. Nazir Khan ILR 36
All 1 : A.I.R. 1914 All 214 (2) Ryves J. referred to both ILR 5 Cal 566 (FB) and ILR 9 Mad 9
and repelled the contention that the actual marriage of the complainant and the woman
Musamma1' Sirtajan was not strictly proved by evidence. He observed after referring to the
class of oases which followed ILR 5 Cal 566 (FB) the following:

I do not think these rulings lay down that the fact of the marriage can be proved only in some
particular way.

Opining that the case before him was much more like the case in ILR 9 Mad 9 he observed :

In the present case I find on going through the record that the complainant was not asked one
word throughout a lengthy cross-examination about his marriage with the woman Sirtajan.

The learned Judge concluded :

There is unrebutted evidence in this case of the woman, the husband and their parents
describing the marriage in detail. I think, therefore, in this case the fact and legality of the
marriage have been satisfactorily proved.

A later decision of 'he Allahabad High Court reported in Emperor v. Buddhu ILR 42 All 175 :
A.I.R. 1920 AH 175 (1) is t0 the same effect. An illuminating discussion on whom lay the
onus when a marriage is challenged by a party on the, ground of non-performance of rites or
ceremonies is contained in Mt. Titli v. Alfred Robert Jones A.I.R. 1934 AH 273 : ILR 56 All
428. This is found in the judgment of Sulaiman, C.J. who concurred with the separate judgment
'delivered Mukherji, J- at page 282 the learned Chief Justice adverted to the question whether
the marriage In dispute was null and void on account of the omission to observe any rules,
rites, ceremonies or customs. He was dealing with the validity of. a marriage under the Indian
Christian Marriage Act which of course does not lay down what those rules, rites1, ceremonies
and customs are. The learned Chief Justice held "the burden would lie on any party, who asserts
that any such rules, rites, ceremonies and customs were not observed," This observation, no
doubt, arises in a civil case. But we consider that this applies with equal force to criminal oases
also and In making out charges of bigamy etc. The Judicial Committee of the Privy Council
in Kashi Nath v. Bhagwan Das A.I.R. 1947 PC 168 had an occasion to re-state the law
enunciated long ago in Inderun Valungypooly v. Karaaswamy Pandia J3 Moo Ind App 14,1 at
p. 158 regarding the presumption that arises when a marriage la fact has been proved to have
taken place. The observation in the earlier decision Is as follows:

Then, if there was a- marriage in fact, was there a marriage in law? When one you get to this,
namely, that there was a marriage in fact, there would be a presumption in favour of there
'being a marriage in law.

Applying its principle to the case before their Lordships where it is pointed out that at onetime
an issue was raised whether the marriage had (been duly solemnized but the same was not
press- ed on account of the concurrent findings of fact of the lower courts, their Lordships laid
down:

The validity of this marriage, duly solemnized, being in question, haf presumption attaches. It
is in that light that their Lordships have to review the evidence which was given on one side
and the other in this case.

Two things emerge from this decision. That when a marriage is said to be solemnized, the
presumption that the marriage has taken place in fact and legally arises; and secondly it may
be proper to assume that the word "solemnized" may not have a restricted meaning than that
in the accepted sense of due performance with solemn rites even when used with reference t0
marriages taking place under Hindu Law or when it occurse in the Hindu Marriage Act.

12. So far as the Calcutta High Court is concerned, we find that the Judicial Committee of the
Privy Council has approved in Mouji Lal. v. Chandrabati Kumari ILR 38 Cal 700 (PC) the
principle that the established presumption in favour of the marriage also applied to the forms
and ceremonies necessary to constitute it a valid marriage, and that the necessary or obligatory
forms and ceremonies were properly performed could be a matter of presumption if in fact the
marriage had taken place. It may be observed that this was so held in a case where the validity
of a marriage was questioned on the ground of mental incapacity of one of the parties but there
was evidence in recognition of that marriage, though not performance of all the ceremonies.

In Taher Khan v. Emperor ILR 45 Cal 64 : A.I.R. 1918 Cal 136, where the accused was charged
Under Section 366 IPC for kidnapping a married woman with intent to compel her to marry,
the word 'marry' has been construed as going through a form of marriage whether the marriage
should prove in fact legal and valid or illegal and invalid: a Division Bench of the Lahore High
Court in Santram v. Emperor ILR XI Lah 178 : A.I.R. 1929 Lah 713, while dealing with a case
of abduction and kidnapping, followed the decision in ILR 45 Cal 641 : (A.I.R. 1918 Cal 136)
and observed that it is settled law that in Section 366 of the Penal Code (as In Section 494) the
word 'many implies going through a form of marriage, whether the same is In fact valid or not.

13. Mr. parthasarathy Swamy, however, places reliance on three decisions of the Calcutta High
Court for contending that the factum of marriage as well as the strict observance of custom as
applicable, must be proved and no presumption would arise in the case when an accused is
being tried for offences Under Sections 494, 497 or 498 I. P, C. But we consider that all those
three decisions turned upon certain special puculiarities pertaining t0 them. In Akshay Kumar
v. Emperor A.I.R. 1933 Cal 880 the accused was tried for an offence Under Section 498 IPC '
The only reliable evidence of the marriage consisted of the statements of the girls and their
husbands. It was also held that there was doubt that the marriages had been celebrated strictly
in ac- cordance with the requirements of custom and law applicable to the parties.

The Calcutta High Court also sought to follow the decision in Batiram Koet v. Bhandaram
Keot A.I.R. 1920 Cal 979 in holding that the evidence was not sufficient in. that case which
was mainly concerned with the proof of validity of the marriage apart from die tact of its
celebration and where such a thing is put in issue. We are of the view that the principle laid
down in ILR 5 Cal 566 (FB) is undoubtedly attached to the facts of that case, and it does not
lay down any general rule that the presumption as to the completion of the marriage by
performance of ceremonies does not arise when, the solemnization of a marriage, as fact, is
proved by other evidence.

The next case referred to by the learned Counsel is reported in Jogu Bibi v. Mesel Shaikh
ILR 63 Cal 415. The accused in that case was charged with bigamy. The question which the
Division Bench decided in that case was whether the marriage of one Jogu Bibi to Mesel
Shaikh was proved according to law. Relying upon the evidence in that case, it was held that
there was no contract of marriage between the parties as the proposal and acceptance made by
the parties had not taken place on the same day a3 required by Mohomedan law, and that there
was no evidence to establish the marriage. This decision also, in our view, does not affect the
presumption which arises that a marriage which has been believed t0 have taken place in fact
is also valid in law.

The third case is that reported in Swapna Mukherjee v. Basanta Ranjan . It is enough to observe
that that decision mainly turned upon the point that a charge of bigamy cannot lie against a
husband who gets himself converted and marries according to Hindu rites while the subsisting
marriage was between the accused and a Christian wife in a Christian form. There the instance
of both the marriages taking place in the same form pertaining to toe same faith turned the
scales. The decision in Mt. Kalan v. Emperor A.I.R. 1938 Sind 127, is a case where the parties
were Sikhs and there was definite evidence that Granth or Anand Sahib wag not read as part
of the ceremonies of the marriage. It is not, therefore, a case where any presumption as to valid
marriage could be invoked. We have, therefore, no hesitation that these decisions relied upon
by the learned Counsel lay no different principles from those enunciated In ILR 5 Cal 566 (FB)
and ILR 9 Mad 9.
14. As far as the view of the Bombay High Court is concerned there is the observation
in Appibai v. Khimji Cooverji A.I.R. 1936 Bom 138 as to the effect of the performance of the
two ceremonies Vivhahoma and Saptapadi viz., the invocation before the sacred fire, and the
taking of seven steps by the bridegroom and bride jointly before the consecrated fine. This
matter has been considered in respect of the claim of maintenance. It is stated to be that °n the
performance of those ceremonies the marriage becomes perfect and irrevocable and that once
the marriage 's so performed, if cannot be dissolved.

The decision at the same time accepts the two cardinal principles laid down in 13 Moo Inct
App 141, Bai Diwali y. Moti Karson ILR 22 Bom 509 and ILR 38 Cal 700 which are that when
it is proved that a marriage was performed to fact, there is a presumption of there being a
marriage in law; and that if some of the ceremonies usually observed on such occasions have
been performed, they have been duly completed.

The decision in Malan v. State of Bombay A.I.R. 1960 Bom 393 is distinguishable, There the
evidence of marriage consisted of throwing sacred rice On the couple. The view of Miabhoy,
J., in regard to this has been that it is not shown that throwing of rice on the couple was a
necessary part of the ceremony in the performance of a valid marriage as it appeared to the
learned Judges that this is ordinarily done by ail the spectators who remain present at a
marriage and that that act was more consistent with the presence of the person at the time of
the celebration of the marriage rather than actual participation in the acts which ultimately
leads to the form of a marriage contract. This itself, in our view, brings out the special features
of that case. We are, therefore, unable to hold that this decision rung counter to the accredited
principles as to proof of marriage adumbrated by other decisions such as ILR 9 Mad 9.

15. Then there is the view that marriage cannot be proved by the evidence of the state in which
the parties were living when the fact of marriage is in issue because the accused is charged for
offences concerning the marriage is, as has already been pointed out, hit by the provisions
contained in Section 32 and 50 of, the Evidence Act. In exemplication of the same rule, we
may refer to the decision in Aziz Khan v. Ekram Hussain A.I.R. 1937 Pat 219 : 38 Cri LJ 213.
In an earlier decision in Ganga Patra v. Emperor A.I.R. 1928 Pat 48.1, the Patna High Court
was also concerned with references made by the spouses lo the relationship between them as
husband and wife. It was held by Wort, J., correctly in our view, that ILR 5 Cal 566 (FB)
applied to this case.

16. A careful consideration of the decisions in ILR 5 Cal 566 (FB) and ILR 9 Mad 9 reveals
that the two decisions are not opposed to each other. On the other hand, they are complimentary
in that while ILR 5 Cal 566 (FB) lays down that marriage cannot be held to be proved by he
evidence of husband or wife only ILR 9 Mad 9 enunciates that such admissions coupled with
the fact of the mother who swore that she had her daughter married to the prosecutor and the
absence of cross-examination as to the factum or validity of the marriage of these witnesses,
would warrant a conclusion of a valid marriage. In Emperor v. Mt. Soni. A.I.R. 1936 Nag 13,
Pollock, A. J. C. considered the effect of the evidence of a witness who stated that about 10
years ago there was marriage and also of other witnesses who spoke about the fact of the
celebration of the marriage as they were present at the marriage. The uncle of the first wife of
the accused who arranged the marriage also admitted that she was married to the accused.
Observ- ing that the truthfulness of his evidence has not been challenged, it was held that the
marriage was proved. The reason assigned by the learned Judicial Commissioner for coming
to that conclusion is as hereunder:

Under Section 3, Evidence Act, a fact is said to be proved when, after considering the matter
before it, the Court either believes it to exist, or considers its existence so probable that a
prudent man ought, under the circumstances of the particular case, to act upon the supposition
that it exists, On the evidence in this case any prudent man would act upon the supposition that
Soni was the legally married wife of Bafaan, In ILR 9 Mad 9 considerably less evidence than
this was accepted as sufficient proof of a valid marriage.

A further point whether a different standard has to be set in regard to the proof of the second
marriage which has also to be proved in order to make out the charge of bigamy Under Section
494 IPC had been considered in this decision. It was held that it is enough if the prosecution
has proved that, as in the case of the first. marriage, the parties "went through a form of
marriage.

17. We may now observe that all this case law as to the proof of a marriage has no doubt been
laid down in general as governing all persons in India, though under the Hindu Law, even
before the Hindu Marriage Act, 1955, was passed, certain marriage ceremonies,, were made
obligatory. It can be illustrated by extracting Mulla on Hindu Law (1959 Twelfth Edition) para
437 which states;

Marriage ceremonies: (1) there are two ceremonies essential to the validity of a marriage,
whether the marriage be in the Brahma form or the Asura form, namely:

(1) invocation before the sacred fire, and

2. Saptapadi, that is, the taking of seven steps by the bridegroom and the bride jointly before
is sacred fire.

The marriage becomes completed when the seventh step is taken; till then it is imperfect and
revocable. Consummation is not necessary to make a marriage complete and binding.

2. A marriage may be completed by the performance of. ceremonies other than those referred
to in Sub-section (1), where if is allowed by the custom of the caste to which the parties belong.

Among the references in the foot notes which form the basis for these observations, some of
the cases discussed above have been noticed. It is. therefore, pertinent to remark that the' law
as conceived in the Evidence Act regarding proof and presumption has been made applicable
both in regard t0 the legality of a marriage which has in fact taken place and also with regard
to the performance of ceremonies. This principle later found statutory recognition in Section
7 of the Hindu Marriage Act; the words used in Sub-section (2) of Section 7 state the effect of
taking the seventh step by the bridegroom and bride jointly before the sacred fire in the case
of Brahmins. That Section makes the marriage complete and binding only then, whereas the
words employed in Mulla's Hindu Law are "imperfect and cable" which are copied from the
decisions. But I the meaning of both set of terms, in our view, is So make the marriage where
the seventh step has not been taken capable of being dissolved; and in any case is not to render
that marriage void ipso jure.

Considered this way, it is not possible that the marriage is incomplete for want of taking the
seventh step by the bridegroom and bride jointly before the sacred fire as it is not void ab initia.
It may be not binding on the parties thereto at the instance of a person who sets up that that
marriage has not become complete by reason of this defect. It, therefore,1 becomes clear that
the burden will be on the person who seeks to get the marriage dissolved since that marriage
in fact had taken place. There is also the significant fact that neither in Section 11 nor
in Section 12 of the Hindu Marriage Act, a marriage rendered incomplete for the reasons stated
in Section 7 has been considered as either void or voidable. The dissolution of such a marriage
has been left to depend upon the nature of proof available in each case and circumstances
attending the celebration or solemnization of the marriage. At any rate, we are unable to accede
to the contention of the learned Counsel that Section 7 is in the nature of a special rule of
evidence which enjoins1 upon the prosecution to establish in all cases by direct evidence the
taking of the seventh step by the bridegroom and bride before the sacred fire and that otherwise
the complainant" should be considered to have failed t0 prove for this reason the second
marriage of the accused in cases of bigamy.

18. Before proceeding to consider whether the proof in respect of a, second marriage is
different from that concerning the first marriage, we would set down the propositions
deducible from the above discussion:

(1) A marriage cannot be proved merely by statements which relate to the existence of any
relationship or by the opinion of any person given out or even expressed by conduct as to the
existence of such relationship of any person although that person has special means of
knowledge on the subject; or

2. by the admissions made by the parties to the marriage who may at times be actuated by
ulterior motives; but if, in addition thereto or Independently, any evidence of the parents of the
parties regarding celebration or solemnization of a marriage is available it would go a long
way in establishing the factum of marriage.

3. The absence of cross-examination of the witnesses for the prosecution who depose as to the
factum is a material consideration which goes to establish that the evidence as to the fact of
marriage is undisputed; so also it is not possible to question the validity of a marriage without
disputing Or impugning that fact in some way or other in the cross-examination.

4. When there is celebration or solemnization of a marriage which has been intended by the
parties to be binding on each other and the form of it has not 'been wholly opposed or against
the customs of the community or the caste t0 which the parties belong, the presump- tion that
the ceremonies were complete and the marriage is legal arises, as on the supposition, that it is
possible that; after a consideration of the matters before it the Court can believe that the
marriage exists and has therefore been proved. The reason of this rule is not far to seek. It
consists in that the intention of the parties which is in the purpose if all the evidence to make
out when patent is not Jo be easily negatived by merely taking into account subsequent denials
of the parties or the willingness to take advantage of one's own purposeful remissness, or
because others question it out of questionable motives; but the presumption of the marriage
can be rebutted only by strong, satisfactory and conclusive evidence.

5. The mention in Section 7 of the Hindu Marriage Act which applies to. the case of first and
second marriages equally that a marriage becomes complete and binding when the seventh
step is taken by the bridegroom and bride jointly before the sacred fire is in recognition the
state of law among the Hindus which provide for the dissolution of the marriage which is
proved to be imperfect and revocable1. There is nothing in the language of that Section that
all legal presumptions which arise in regard to file taking of the seventh step, as well as the
performance of ceremonies, is set at naught, Further, the argument that the presumption in
regard to the performance of the ceremonies would arise only when the witnesses speak at
least to the adoption of some or part of the ceremonies at the marriage is Hot supported by
authority.

6. There is nothing to indicate in the language of the Sections of the Hindu Marriage Act to
suppose that it gives room to treat a solemnized marriage, though defective or irregular but
intended to be in force and operative, as of no legal effect by pointing out that proof of
particular ceremony is not made out by positive evidence though no effort is made to impugn
it for that reason. Such a marriage, no doubt, when successfully impugned would be a nullity;
but the marriage tie between the parties Jo such a marriage is not otherwise non-existent till
the ceremonies are established to have been performed and that too by positive proof by
complainant.

19. While there could be little doubt that these principles govern the proof of first marriage, it
has now t0 be seen whether proof in regard to the second marriage, which has also to be
established in the case of bigamy for the purpose of making out that another has been
contracted by the person whose first marriage is subsisting, is different. A reference to English
law in this connection is useful It has been undoubtedly laid down that "the prosecution m"
prove the prisoner's subsequent marriage ... i.e., that the prisoner went through a form of
marriage ... (Vide para 3796 of Archbold's 'Criminal Pleading, "Evidence and Practice, 34th
Edition at page 1420). Further, we find the following in that paragraph :

Even if the subsequent marriage would have been void, as for consanguinity or the like, the
prisoner is guilty of bigamy.

When a person already bound by an existing marriage goes through a form of marriage knows
to and recognised by the law as capable of producing a valid marriage, for the purpose of a
pretended and fictitious marriage, the case is not the less within the statute (Offence against
the Person Act, 1861) by reason of any special circumstances, which independently of the
bigamous character of the marriage may constitute a legal disability in the particular parties,
or make the form of marriage resorted to specially inapplicable to their individual case.

Further below, in the same context, we have :

The celebration of the second marriage Is proved in the same manner as that of the first".
Halsbury's Laws of England, Simonds Edition (Third) Volume 10 at page 664 has the
following in regard to the offences of bigamy even when the second marriage is invalid.

1267, "Invalid second marriage, A person already married who, having the intention of
appearing to contract a second marriage, goes through a form known to and recognised by the
law as capable of producing a valid marriage, is guilty of bigamy, although the second
marriage, even if it were not bigamous, would be otherwise invalid.

The position so postulated so far as the second marriage is concerned brings out that the proof
of the second marriage does not differ from that of the first marriage and the invalidity of the
second marriage for any reason does not deprive it of its bigamous character till It is set aside.
Coming nearer home, it may be observed there is nothing to show that the voidity of marriage
for non-compliance with the conditions specified in Section 5 of the Hindu Marriage Act is
absolutely non est for all purposes. Even marriages which are declared null and void by
application of Section 11 of the Hindu Marriage Act cannot be considered void ab initio or
void ipso jure, so as to render a child begotten or conceived before the decree is got,
illegitimate. The effect of declaring a marriage voidable is also similarly dealt with in Section
16 of the Hindu Marriage Act, 1955.

While so, the position in regard to parties to a marriage which could be revoked or dissolved
because of its imperfectness only at the instance, I initiation or impeachment by any party,
cannot be considered as invalid or void for all purposes even from the inception. The
subsistence of the second marriage between the parties whose intention t0 have it performed
and who go through a form of it and never attempt to question it could in our view, be definitely
taken as proof of that marriage. In such a case it will come Under Section 494, Indian Penal
Code as one where the husband or wife married again having already n spouse although the
position after a decree for dissolution is obtained for proved infraction of the provisions
of Section 7 may be on a different fooling.

It may not be inapt, having regard to the propositions stated above concerning the proof of
marriage, to hold that no special responsibility is thrown on the prosecution to prove that the
second marriage was completed by taking the se- venth step when especially proof of it will
be complete with the play of presumption juris which is always rebuttable.

20. The learned Counsel next placed strong reliance upon the judgment of Sanjeeva Row
Nayudu, J., in Satyavathi v. Subbayamma (1959) 1 Andh WR 169 in support of his contention.
But we are unable to find anything in it which goes against the accredited principles which we
has already referred to concerning the proof of second marriage. After stating that the main
fact in issue to be found in cases falling Under Section 494 Indian Penal Code or 'section 4 of
the Madras Hindu (Bigamy Prevention and Divorce) Act (Madras Act VI of 1949) is whether
the second marriage has in fact taken place or not, the learned Judge arrive at the conclusion
on the evidence that, in his opinion, the case failed for want of credible evidence establishing
the factum of bigamous marriage. The learned Judge had, there-fore, no necessity to advert to
the manner in which the second marriage has to be proved or whether it was necessary to
establish the validity of the second marriage even if that is not questioned. We are, therefore,
unable to see that any support could be drawn from this decision by the learned Counsel for
his contention.

21. From the resume of facts and evidence concerning the instant case already given, it is not
merely the evidence of P.Ws. 2 and 3 regarding the solemnization or celebration of the
marriage which has been believed concurrently by the lower courts, but; also the evidence of
the father of the bride who deposed as D.W. 2 that he gave away the bride. The want of any
attempt on the accused to impugn the marriage on the ground of non-observance of any
ceremony of Saptapadi so as to leave it incomplete weighed with the lower courts to find as a
fact that there was solemnization of the second marriage. We are unable to see that this manner
of making out the second marriage in any way detracts from the strict proof which is insisted
in the case of a' second marriage where the prosecution is for bigamy. The 1st accused
(petitioner herein) is a retired school master.

P.W. 2 is a school teacher. They could not be taken to ignore or avoid the ceremonies at a
marriage. It is also in evidence that the 1st accused protested where it was suggested that his
earlier marriage with the complainant: was subsisting on the date of the second marriage. He
had definitely come up with the statement that he would be the last person to get married a
second time in view of the penal provisions of the Hindu Marriage Act. He would not have
therefore given any room for doubting his bona fides by leaving out any part of the necessary
ceremonies, Purohits have also officiated at the function; and there is therefore nothing to
suppose that all the marriage ceremonies have not been properly gone through. On the other
hand, we consider that is the reason for the absence of cross-examination or of any effort to
impugn the second marriage by disputing it in cross-examination on the ground of irregularities
in the performance of the ceremonies.

22. We find, therefore, no grounds for interfering with the findings of the lower Court, .We do
not also propose to interfere with the sentence imposed on the petitioner. It follows-that this
revision petition fails and is accordingly dismissed.
Chandra Mohan Majhi vs Smt. Kaushalya Majhi on 20 February, 1997
Showing the contexts in which ceremonies for a hindu marriage. appears in
the document

12. Hindu society from historical and sociological point of view is a multi-
facet society of oceanic vastness, comprising hydra-headed streams of
customary rites, ceremonies and sacraments, more oftener than not
mutually exclusive of one another, and foreign to one another. It comprises
within its fold the rainbow, as it were, of innumerable distinct customs
and ceremonies based on innumerable streams of culture and social
practices, each peculiar to the society ranging from the crystallised polished
Aryan custom, down to occult, prehistoric and rustic one running through
the veins of the society from time immemorial, constituting a broad
spectrum society, that is called the Hindu society. Marriage solemnized
following any of such thousands of custom recognized in any such clan,
tribe, group or race absolutely peculiar to it is nevertheless
a Hindu customary marriage. A marriage solmnized pursuing any of such
customs prevalent among and peculiar to the Santhals or even any particular
clan or group of it, is equally a Hindu marriage as solemnized following
the system prevalent among the Brahmins and other upper class Hindus of
Aryan origin as formulated by the Smritikars through
ages. Hindu Marriage Act lays down the law in vogue at present about
such marriage and as I have stated earlier, while Section 8 provides
for marriage by registration, Sections 5, 6 and 7 lay down the provisions
for ceremonial marriage irrespective of the ceremonies honoured by
Brahmins or Santhals. Section 5 provides the conditions for solemnization
of such marriage violation of any of which renders the marriage as null
and void. There must be no incapacity of the parties violating the conditions
laid down in Section 5 of Hindu Marriage Act. In this case the 2nd party-
petitioner claims that at the time of the alleged marriage he was a minor
and adduced some evidence to support that conditions. Under Section
5(iii) of Hindu Marriage Act, in case the Act is applicable to these
parties, marriage is invalid unless the groom has attained the age of twenty-
one years. Keeping aside that question of age at present and to consider
under that perspective whether the marriage if at all held, offended Section
5(iii) of the Act, we shall proceed to ascertain at present if any fact
of marriage between the parties as pleaded by the 1st party-opposite party
had at all been established keeping also in view that the parties undoubtedly
belonged to a Scheduled Tribe, known as the Santhal. But a
"Hindu marriage" as it understood in Hindu Marriage Act does not refer
to Hinduism as a religion but relates to all persons who are Hindus in the
wide connotation of the expression. Then again, the term "Hindu" is not
restricted to any ethnological group of human beings or any race. It includes
in its fold all these human beings in India who, not converted to any other
religion, follow the long standing religious and social rites and customs
since the dawn of human society, since the hoary pre-historic past or
amended by growing up of new social outlook and turn of history and the
word "solemnization" as understood in the Act means, to celebrate
the marriage with proper ceremonies and customs recognised and
practised in the society since long and in due form. Section 7 rules that
a Hindu marriage that is, one made under the present Act must after
commencement of the Act be solemnized in accordance with the customary
rites and ceremonies at least of either of the parties to the marriage. In the
society where such rites and ceremonies prevalent among the parties
include "Saptapadi" that ceremony must be observed to make the rituals
complete after the seventh step taken. Therefore, the law recognized
in Hindu Society does not make "Saptapadi" an indispensable custom in
every incident of marriage. What is required is substantial compliance with
only those rites and ceremonies, performance of which is, by the customary
law of either party, peculiar to it and deemed as absolutely necessary, and,
non-performance of which rites and ceremonies of prime necessity would
be regarded as failure to solemnize the marriage and no
valid Hindu marriage can result. This is because a marriage, not duly
solemnized by performance of the essential ceremonies prevalent in the
society which the parties or either of them, belong to, is no marriage at all.
One particular custom observed in one group or clan is very often not
recognized by the other and is often incompatible with the custom followed
by any other group of dan or tribe.

16. Four witnesses were examined by and on bahalf of the 1st Party-O.P.
They were the 1st party herself, her father (P.W.2), maternal uncle (P.W.3)
and paternal uncle (P.W.4). All the P.Ws. examined in this case were,
therefore, very closely related by blood relations and in a case like this must
be highly interested. The 1st party failed to examine any non-relative
disinterested and independent witness, as for example, any presbyterian of
the society, or any person who attended the alleged marriage as invitce and
all those who took part in the festival and adibasi dance at the time
of marriage. The P.W.I the 1st party herself claimed that the marriage was
solemnized according to Hindu rites and that all the
essential ceremonies of Hindu marriage like "Saptapadi", "Sindurdan",
"Homa" etc. were strictly observed and that after the marriage she resided
in the house of the second party as the legally married wife. In her cross-
examination the P.W.I deposed that they belonged to Santhal community.
But she also deposed that:

It fantastically leads us to suspect that her whole case of marriage is

stupendous falsehood.

18. The deposition of the P.W.I - 1st paty is, therefore, quite confusing and
we have reason to believe that she was tutored to claim that the custom
prevalent among the Hindus of Aryan origin were followed in
her marriage and parrot-like she quoted such ceremonies about which she
did not have any clear idea at all. It was claimed that all these
were ceremonies performed to solemnize her own marriage but, strangely,
she had no idea about ceremonies of Hindus of Aryan origin. In her cross-
examination she conceded that marriage in their community took place as
per custom prevailing in their community. This was a clear contradiction to
her own case. Nothing was adduced in evidence to show that the Santhal
community, at least in their area, or, their own family, ever resorted at any
time before to practise the Aryan customs like "Saptapadi", "Sindurdan",
"Homa" etc. That the 1st party had no clear idea about
the ceremonies revealed the fact that she was tutored to claim solemnization
of marriage according to Hindu rites, practised in group or clan of Aryan
origin, but no evidence was ever adduced that their community or family
ever before resorted to that practice or that any such practice was part of the
custom prevalent among the Santhal community. The deposition of the P.W.
1, therefore, made the whole case of marriage very much doubtful. The
P.W. 2 was the father of the P.W.1 the 1st party and he also deposed that all
the essential ceremonies of the Hindu marriage like "Ashirbad",
"Saptapadi", "Homa" etc. are strictly observed. Stoutly he claimed that
Santhals also were Hindus, but, in cross-examination he gave out that:

"I do not know whether service of priests is not to be requisitioned in

the marriage of Santhals". He of course gave in when in cross- examination
he admitted that "I do not know details of ceremony of Hindu marriage".
On the face of claim of marriage having been challenged stoutly by the 2nd
party the father of the so-called bride deposed that:

"I cannot say names of the persons who were present" there. In his cross-
examination he further deposed that "Gorachand visited my house after
settling his son's marriage with my daughter but I did not visit his house, it
is the duty of the son's father to visit daughter's father with a proposal of
son's marriage and the said custom is prevalent in our Santhal community.
We belong to Santhal community". It is evident from the deposition of the
father of the 1st party bride that they did not accept the rites
and ceremonies of the Vedic Hindus and, therefore, the claim of resorting
to the Vedic ceremonies like "Saptapadi", "Sindurdan", "Homa" . etc.
which are not prevalent even among some upper-class Hindu society,
appears to be a falsehood. The next witness P.W.3 was the maternal uncle
of the 1st party. In his cross-examination it was divulged that he did not visit
the alleged matrimonial home of the 1st party at any time and could not be
present even at the time of the marriage. He just deposed that the family of
Biswanath, father of the 1st party, followed the religious rites of the Hindus.
But the ceremonies and custom followed by the Santhals by tradition with
all its peculiarity are also Hindu rites prevalent among their society. Hence,
from his deposition we cannot be sure whether the Vedic ceremonies as
claimed were actually resorted to, or, such story was invented for giving
decent show to the story of marriage. The P.W. 4 paternal uncle of the 1st
party claimed that the marriage was solemnized according
to Hindu religious rites.

Section 5 in The Hindu Marriage Act, 1955

5 Conditions for a Hindu marriage. —A marriage may be solemnized between any two
Hindus, if the following conditions are fulfilled, namely:—
(i) neither party has a spouse living at the time of the marriage;
2
[(ii) at the time of the marriage, neither party—
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of such
a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity 3 [***];]
(iii) the bridegroom has completed the age of 4 [twenty-one years] and the bride, the age
of 5 [eighteen years] at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or
usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of
them permits of a marriage between the two;
6
[***]
(i) A marriage between a Hindu man who converted as Christian and a Christian lady in a
Hindu form is not a valid marriage. According to section 5 of the Act marriage can be
solemnised between two Hindus; M. Vijayakumari v. K. Devabalan, AIR 2003 Ker 363.
(ii) To draw an inference merely from the fact that the spouses had no co-habitation for a
short period of about a month, is neither reasonable nor permissible. To brand the wife as
unfit for marriage and procreation of children on account of the mental disorder, it needs to
be established that the ailment suffered by her is of such a kind or such an extent that it is
impossible for her to lead a normal married life; R. Lakshmi Narayan v. Santhi, AIR 2001
SC 2110.
The Supreme Court of India, in 2006, made it mandatory to register all marriages. In India, a
marriage can either be registered under the Hindu Marriage Act, 1955 or under the Special
Marriage Act, 1954. The Hindu Marriage Act applies to Hindus, whereas the Special Marriage
Act applies to all citizens of India irrespective of their religion. The Hindu Marriage Act
provides for registration of an already solemnised marriage and does not provide for
solemnisation of a marriage by a Marriage Registrar. However, the Special Marriage Act
provides for solemnisation of a marriage as well as registration by a Marriage Officer. To be
eligible for marriage in India, the minimum age is 21 years for males and 18 years for females.

Registration under the Hindu Marriage Act, 1955

The Hindu Marriage Act is applicable in cases where both husband and wife are Hindus,
Buddhists, Jains or Sikhs, or where they have converted into any of these religions. The first step
in this process is to apply to the sub-registrar under whose jurisdiction the marriage has been
solemnised, or either party to the marriage has been residing.

Both partners will need to fill in the Application Form, sign it and submit it along with two
photographs of the marriage ceremonies, invitation card of marriage, age and address proof of
both parties, affidavit of Notary/Executive Magistrate to prove that the couple is married under
Hindu Marriage Act 1955, fit mental condition and proof of non-relationship between the parties
within the degree of prohibition.

All the documents should be attested by a Gazetted Officer and the parties will have to deposit a
fee with the cashier at the sub-registrar and attach the receipt with the Application Form. Once
the application has been submitted and the documents verified, the concerned officer will assign
a date of registration when the marriage certificate will be issued.

Under the Hindu Marriage Act, 1955, certain conditions have to be fulfilled to consider the
marriage between the parties legal and valid. These conditions have been specified under Sec. 5
and sec. 7 of the Act. Under section 5 of the Hindu Marriage Act 1955, a marriage is considered
valid only if both the parties to the marriage are Hindus. If either of the party to the marriage is a
Muslim or a Christian, then the marriage will not be a valid Hindu marriage.

A marriage can be solemnized between any two Hindus if the following

conditions are fulfilled, namely:
  If neither party has a spouse living at the time of the marriage,
 If neither party is incapable of giving a valid consent to it in the consequence of
unsoundness of mind,
 Though capable of giving a valid consent, neither of them has been suffering from any
mental disorder or to such an extent as to be unfit for marriage and the procreation of
children,
 If neither of them has been subject to recurrent attacks of insanity or epilepsy.
 The bride has completed the age of 18 years and the bridegroom the age of 21 years at the
time of marriage,
 The parties aren’t within the degrees of prohibited relationship unless the custom or usage
governing each of them permits of a marriage between the two,
 The parties are not a lineal ascendant of the other (Sapindus) unless the custom or usage
governing each of them permits of a marriage between the two.

Degree of prohibited relationship:

Two individuals are said to be covered under the degrees of prohibited relationship –

 If one of them is the lineal ascendant of the other,

 One was the husband or wife of lineal ascendant or descendant of the other,
 If one of them was the wife of the brother or the father’s or mother’s brother or the
grandfather’s or grandmother’s brother of the other,
 Or if they are brother and sister, aunt and nephew, uncle and niece, or children of brother
and sister or of two brothers or two sisters.

A marriage falling within the above categories will be considered void.

Exception: The customs play an important role here i.e. If there is a custom governing the
parties, they may marry even if they fall under the degrees of prohibited relationship.

Punishment: A marriage which is solemnized between the parties within the degrees of
prohibited relationship is considered null and void.
The parties of such a marriage are liable to be punished with simple imprisonment for one month
or a fine of Rs. 10000/- or with both.

Solemnization in Hindu Marriage

The Hindu Marriage Act, 1955 deals with ceremonies to be followed in a Hindu marriage, by the
virtue of Sec. 7. The provision states that a Hindu marriage can be solemnized following
customary rites and ceremonies of either of the parties.

A Hindu marriage can be solemnized under the customary rites and

ceremonies of either party.

Where the rites and ceremonies include the saptpadi (the taking seven steps by the bride and the
groom jointly around the sacred fire), the marriage becomes complete and binding when the
seventh step is taken.

These ceremonies may vary according to the customs and traditions followed by the parties.

The Hindu Marriage Act 1955 does not apply in the State of Goa and the Union Territory of Daman and
Diu. In Puducherry it does not apply to the ‘Renoncants’ (those who opted for the local Franco-Indian
law at the time of the assimilation of the territory into the Indian Union in 1954).
Ram Awadh And Ors. vs Krishna Nand Lal And Ors. on 28 July, 1981
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"Kalindri ke chacha ne shadi karaya tha Koi Pandit shadi nahi karaya tha. Unke chacha ne havan karaya
tha aur Kalindri Lal ne sindur dala tha. Aur kuchh nahi hua."

This does not amount to a marriage according to Arya Samaj rites, for the Saptapadi is one of the essential
features of an Arya Samaj Marriage. The principal difference between a Hindu marriage according to the
Arya Samaj rites and the customary rites prevalent in this part of the country, apart from formal differences
of ritual, lies in the fact that while according to the strict Vedic rites observed by the Arya Samajists, the
bride-groom and the bride make only four rounds of the sacred fire, on the other hand according to the
customary rites prevalent in these parts of the country, seven rounds have come to be generally performed
and even thought to be an essential marriage rite rather than the Saptapadi. According to law, a marriage
is complete only when the seventh step of Saptapadi Saptapadi is taken, where Saptapadi is one of the
rites required to be performed under the customary rites of the party according to which the marriage is
solemnized, but it is generally believed in these parts of the country that a marriage is complete on the
completion of the seventh round of the sacred fire, made by the bride-groom and the bride together. The
seven rounds of the sacred fire is not the same thing as Saptapadi. Saptapadi is a ceremony which follows
immediately after the four rounds of the sacred fire taken by the bride-groom and the bride according to the
strict Vedic rites or after the seven rounds of sacred fire according to the current customary rites.

6. In S. Bulli Appana v. Subamal (AIR 1938 Rang 111) it was urged that the marriage was not valid because
what the parties had done in that case was to walk round the sacred fire seven times instead of 'the bride
merely taking the seven steps required in the Saptapadi ceremony.' The court below had held that the bride
had in that case taken seven steps in the course of carrying out the said rite, and the fact that she had taken
more steps than seven did not invalidate the marriage. This naturally raised the question whether there was
any prescribed form of Saptapadi, or the manner of taking the seven steps by the bride-groom and the bride
jointly before the sacred fire, which it may be necessary to adhere to in order that the seven steps taken may
constitute the ceremony of Saptapadi. Reliance was placed on the decision in Rampiayar v. Deva Rama
(ILR 1 Rang 129 : AIR 1923 Rang 202) in which it was held that there could be no Saptapadi by merely
taking five rounds of the receptacle of fire, on the assumption that seven steps and seven rounds mean the
same thing. This assumption has been criticised in S. Bulli Appana's case. In Sitabai v. Vithabai (AIR 1959
Bom 508) also it has been held that seven steps should not be confused with seven rounds, and that "the
only requirement of the ceremony called the Saptapadi gamana is that seven steps should be taken round
the nuptical fire." S. Bulli Appana's case and Sitabai's case, both turn on the meaning attributed to the word
pada which forms part of the term Saptapadi, and in both of them the word was taken in the literal sense
of the word 'step' into which it has been translated into English. In S. Bulli Appana's case the following
three texts are cited from Sir Hari Singh Gour's Hindu Code, 3rd Edition, Sir Ernest Trevelyan's work on
Hindu law, 3rd Edition, and Sir Gooroodas Banerjee's Tagore Law Lectures on the Hindu Law of Marriage
and Stridhana, on the meaning of Saptapadi. They are:--

(3) The bride is then made to walk seven steps. This is the most material of all the nuptial rites, as, according
to the sages, marriage becomes complete and irrevocable on the completion of the seventh step". (Sir
Gooroodas Banerjee's Tagore Law Lectures on the Hindu Law of Marriage and Stridhana)". The elucidation
of the meaning of Saptapadi, given in parenthesis in Section 7 (2), of the Act, has apparently been taken
verbatim from Mulla's principles of Hindu Law. (See Section 437 (1), at p. 547 of the 11th Edition, and p.
517 of the 14th Edition). The more important ones of the ceremonies are, apart from the puja and the yajna
or the homa, the kanyadana, the panigrahana, the treading of stone, the rounds of sacred fire, and
the Saptapadi. According to the Vedic rites only four rounds of the sacred fire were prescribed, but custom
has made them into seven. Indeed, according to the Sanskrit Shabdartha Kaustubha, the term Saptapadi has
been explained as meaning a marriage rite in which the bridegroom and the bride, tied with a knot, take
seven rounds of the sacred fire. (1977, IV Den., pp. 1217-18, under the word saptapadi, at page 1218). It
may be that in certain parts of the country the true Vedic rite of four rounds of the sacred fire, followed
by saptapadi, has been modified into seven rounds followed by a saptapadi combined with seven
promises. The precise form of saptapadi as contained in a standard book on Vivah Vidhi along with the
comments of the author thereof, is as follows:

(Matter in vernacular. Omitted here.--Ed.) There is a slight ritual variation in the form of Saptapadi of an
Arya Samajist marriage, but the basic mantras are similar.

7. Before the enactment of the Hindu Marriage Act, 1955, the two ceremonies essential for solemnizing a
valid Hindu marriage were, according to para 437 (1) of Mulla's Hindu Law : "(1) invocation before the
sacred fire and (2) Saptapadi i.e. the taking of seven steps by the bridegroom and the bride jointly before
the sacred fire :" and the marriage became complete when the seventh step was taken. A marriage could
also be solemnized by performance of other ceremonies which were allowed by the custom and the caste
to which the parties belonged, and in some cases, as in the case of re-marriage of a widow, it was sometimes
said that no religious ceremony was necessary for the same. But in the present case the defendants did not
plead that the alleged marriage between Kalindri Lal and Smt. Jagrani was solemnized in accordance with
some customary rites different from the standard Hindu ceremonies of invocation before the sacred fire
and saptapadi. Indeed, as observed above, they specifically pleaded that Kalindri Lal was an Arya Samajist
and the marriage was solemnized in accordance with Arya Samaj rites. According to Arya Samaj rites, the
invocation before the sacred fire and the Saptapadi are both essential. However, according to the statement
of Smt. Jagrani, D. W., quoted above, Saptapadi does not appear to have been performed. Thus on the
pleadings and the evidence of the defendants themselves, there could be no marriage, as we understand it
in law, between Kalindri Lal and Smt. Jagrani.
Article 366(25) in The Constitution Of India 1949
(25) Scheduled Tribes means such tribes or tribal communities or parts of or groups within
such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for
the purposes of this Constitution;

The Hindu Marriage Act, 1955 3.9 Section 8 of the Hindu Marriage Act, 1955 lays down for registration of
marriages. Registration under this Act is to facilitate the person to have proof of marriage by way of
registration. The State Government has been empowered to make rules for registration of the marriage.

riya Bala Ghosh vs Suresh Chandra Ghosh on 4 March, 1971

Showing the contexts in which valid marriage appears in the document
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On appeal by the appellant, the Calcutta High Court, how- ever,, differed
from the finding of the, learned Sessions Judge regarding the invalidity of
the marriage between the appellant and the respondent. On the other hand,
the High Court held that the evidence establishes that a valid marriage,
according to Hindu law, by which the parties were governed, has taken place
between the appellant and the respondent. But regarding the
second marriage, the High Court agreed with the finding of the learned
Sessions Judge that the essential ceremonies' to constitute
a valid marriage have not been proved to have taken place. In this view the
High Court confirmed the order of acquittal passed in favour of the
respondent and dismissed, the appellant's appeal.

According to Mr. Majunidar, when once the priest has given evidence to the
effect that the marriage between the respondent and Sandhya Rani has been
performed, it follows that all the essential ceremonies that are necessary to
constitute a valid marriage must be presumed to have been performed. In
any event, when there is evidence to show that the marriage as a fact has
taken place, the presumption is that it has taken place according to law. In
this connection Mr. Majumdar referred us to various English decisions when
on the basis of certain evidence regarding the taking place
of marriage between the, parties a presumption has been drawn that
the marriage must have been solemnized according to law. In our opinion,
it is unnecessary to refer to those cases cited by the learned counsel as the
position is concluded against the appellant by the decisions of this Court on
both points. Section 5 of the Act lays down conditions for a
Hindu marriage' It will be seen that one of the conditions is that referred to
in clause (i), namely, that neither of the parties 96 5 has a spouse living at
the time of the marriage., Section 7 dealing with the ceremonies for
Hindu marriage is as follows :

"Prima facie the expression 'whoever..... marries' must mean 'whoever ....
marries validly' or whover ..... marries and whose marriage is a valid one.'
If the marriage is not a valid one, according to, the law. applicable to the
parties, no question of its being void by reason of its taking place during the
life time of the husband or wife of the person marrying arises. If
the marriage is not a valid marriage, it is no marriage in the eye of law."

(1) [1965] 2 S.C.R. 837.

96 7 From the above quotations it is clear that if the alleged
second marriage is not a valid one according to law applicable to the
parties, it will not be void by reason of its taking place during the life of the
husband or the wife of the person marrying so as to attract s. 494 I.P.C.
Again in order to hold that the second marriage has been solemnized so as
to attract s. 17 of the Act, it is essential that the second marriage should
have been celebrated with proper ceremonies and-in due form. In the said
decision this Court further considered the question whether it has been
established that with respect to the alleged second marriage the essential
ceremonies for valid marriage have been performed. After referring to the
passage in Mulla's Hindu Law, 12th Edn. at page 615 dealing with the
essential ceremonies which have to be performed for a valid marriage, this
Court, on the evidence held that the prosecution had neither established that
the essential ceremonies had been performed nor that the performance of the
essential cermon is had been abrogated by the custom goveming the
community to which the parties belonged In this view it was held that the
prosecution in that case had failed to establish that the alleged
second marriage had been performed in accordance with the requirement
of s. 7 of the Act. The effect of the decision, in our opinion, is that the
prosecution has to prove tbat the alleged second marriage had been duly
performed in accordance with the essential religious rites aplicable to the
form of marriage gone through by the parties and that the
said marriage must be a valid one according to law applicable to the
parties. In Kanwwl Ram and others v. The Himachal Pradesh Admn. (1) ibis
Court reiterated the principles, laid down is the earlier decision referred to
above that in aprosecution for bigamy the second marriage has to be proved
as a fact and it must also be Proved that the necessary ceremonies had been
performed. Another Proposition laid down by this decision, which answers
the second contention of the learned counsel for the appellant, is that
admission of marriage by an accused is no evidence of marriage for the
purrpose of proving, an offence of bieamv or adulterv. On the evidence it
was held in the said decision that the witnesses have not Proved that the
essential ceremonies had been performed. It was contended that an
admission made by the accused regarding the second mamaee. is conclusive
of the fact of a second marriage having taken place and that without any
other evidence a conviction could be based on such admission. This Court
rejected the said contention stating "..................it is clear that in law such
admission is not evidence of the fact of the second marriage having taken
place. In a bigamy case, the second marriage as a fact, that is to say, the
ceremonies constituting it must be proved : Empress v. Pitambur
Singh(1), Empress v. Kallu ( 2) , Archbold Criminal Pleading Evidence and
Practice (35th ed.) Art. 3796. In Kallu's case and in Morries v. Miller(3) it
has been held that admission of marriage by the accused is not evidence of
it for the purpose of proving marriage in an adultery or bigamy case........
The decision in R. V. Robinson(4) was relied on in the above decision on
behalf of the prosecution in support of the proposition that it was not
necessary to prove that all the ceremonies required for the particular form
of marriage had been observed. After a consideration of the facts in the
English decision, quoted above, this Court has expressed the view that the
said decision does not support the said proposition enunciated on behalf of
the prosecution. We are only adverting to this fact, because the English
decision was again referred lo us by Mr. Majumdar; and it is not necessary
for us to refer to the same over again excepting to say that the said decision
does not advance the case of the appellant.